Practice Watch

Your Practice Advisor

Felicia S. Folk, the Law Society's Practice Advisor, is available to discuss your practice concerns. All communications between Ms. Folk and lawyers are strictly confidential, except in cases of trust funds shortages.

You are invited to call her at (604) 669-2533 or toll-free in B.C. 1-800-903-5300 at any time or write to her at the Law Society office.

Enduring powers of attorney extended another year

The Attorney General has announced that enduring powers of attorney will continue until September 1, 2002.

Also, amendments to the Representation Agreement Act were passed in the Legislature on March 29, 2001. The amendments:

provide for standardized forms for agreements with general powers,

reduce the number of witnesses required for agreements,

clarify the duties of representatives and monitors through application of the standard of reasonable care,

provide authority for a representative to delegate investment decision-making and

increase flexibility for those making agreements to determine whether certain statutory provisions will apply to an agreement.

The amendments to the Representation Agreement Act, which will come into force on September 1, 2001, are found in the Adult Guardianship Statutes Amendment Act, 2001.

When acting for your family - are you insured?

No. Your insurance policy excludes coverage for a claim arising out of an error, the payment of which would benefit, in whole or in part, directly or indirectly, you or your family. Coverage is also excluded for any claim by, against, arising out of, or in connection with any organization in which you or your family has effective management or control of the organization or beneficial ownership of the organization in an amount greater than 10%.

The definition of "family" is spouse (including common-law spouse), children, parents or siblings.

Please consult the insurance policy - which you will find in your Member's Manual and on the Law Society website - for the exact wording of this exclusion. If you have any questions about the application of the policy to your circumstances, please contact Kerry Sheppard, Claims Counsel, at the Lawyers Insurance Fund: Tel (604) 443-5743 or email to ksheppard@lsbc.org.

When a lawyer leaves the firm

When a lawyer leaves your firm, do you have a system to ensure that every file for which that lawyer was responsible has been transferred? Is the firm clear on which files the lawyer will transfer to his or her new firm and which files will stay with your firm? Does each file that stays with your firm have a home with another lawyer?

A list should be prepared of all files for which the departing lawyer was responsible, stating which will be taken by the departing lawyer and which will stay with the firm. This information should be available to answer any enquiries about the location and ongoing responsibilities for the files.

It is important that the newly responsible lawyer review each file immediately upon the transfer. There may be limitation dates approaching.

Have any undertakings been given on a file? Undertakings given on any files that are affected by a lawyer's departure must be reviewed. A departing lawyer who has given an undertaking, but ceases to act on the matter, continues to have personal responsibility for the fulfilment of the undertaking, even where another lawyer has assumed conduct of the matter on which the undertaking was given. Such an undertaking must be renegotiated with the recipient of the undertaking to ensure that it conforms to a changed situation. Alternatively, the departing lawyer may deal with the obligations of the undertaking by placing another undertaking on the lawyer who assumes conduct of the matter to fulfil the original undertaking.

Also, if another lawyer in the firm gave an undertaking on a file that is transferred to the departing lawyer, that undertaking must also be dealt with promptly if the firm will be unable to comply with the undertaking on the lawyer's departure.

What will happen to old files in storage? Often no one wants to keep inactive files. However, the departing lawyer may assume that old files will be available at the former firm if he or she wants them in the future, while the firm might intend to destroy the files according to its own schedule, without consultation with the lawyer. The keeping of old files is a matter that needs to be worked out at, or before, the time of a lawyer's departure.